Officer X is back with a post about Tribal Police and jurisdiction. We’ve got a lot to get through, so I’ll step out of the way. Dazzle us with your vast knowledge, Officer X! We greatly appreciate your time and effort to help our stories ring true. For further research, I’ve added numerous links to this post.
In previous posts I discussed the most common areas of jurisdiction utilized in American fiction: federal and state. Two remaining and more complex jurisdictional areas exist: Tribal and Military. Each needs to be covered individually. So, I will start with focusing on Tribal jurisdiction, which by far is the most difficult and confusing jurisdiction to understand. Most lawyers I know dread dealing with the complexities of Tribal jurisdiction. On the other hand, the few that know Tribal jurisdiction love the challenge.
Tribal jurisdiction can involve federal, state, and even military jurisdictions, depending on the case.
I have worked in and around Indian Country (yes, that is the legal name) throughout my career, and I have family and friends that live on Indian reservations and are members of federally recognized tribes. To understand Tribal jurisdiction, one must first understand who is considered an “Indian.”
WHO IS AN INDIAN?
Indian, for jurisdictional purposes, is not solely a racial genetic identity. Indian is a combination of racial identity, blood quantum (the total percentage of your blood that is Tribal native due to bloodline), and federal recognition.
A jurisdictional Indian, must belong to a federally recognized tribe and have enough blood quantum to be placed on that particular tribe’s rolls. They are then registered with the Bureau of Indian Affairs (BIA) and receive a specific BIA number, which is used similarly to a social security number to receive benefits provided by various federal Native American programs.
Each tribe sets their blood quantum. The Cherokee Nation of Oklahoma sets their blood quantum as any direct descendants from a person placed on the Dawes Rolls (a list created by Senator Henry L. Dawes under the Dawes Commission in the late 1800’s).
The Flathead Tribe of Montana requires a ¼ blood quantum. Each tribe varies. Depending upon one’s Tribal descendants, a full-blood Indian of mixed Tribal blood may not be considered by any one tribe to be an Indian under the law, while someone who is 1/64 Cherokee is considered Indian under that same federal law.
I have a good friend who is ½ blood Indian but no more than 1/8 member of any tribe, so he is not considered Indian under the jurisdictional definition.
To complicate the matter further, tribes have the ability to dis-enroll members.
Currently, in the Western United States, there are some tribes, who as they gain larger proceeds from casino and other business ventures, that are dis-enrolling members. These tribes are basing the dis-enrollments on the loose histories, listing certain families as descendants of captured and enslaved Indians who were set free as part of treaty negotiations with the US Government, but chose to remain with the tribe. Some tribes also possess the power to dis-enroll members based on their criminal activity. This rule is usually based on a set of “banishment” procedures contained within Tribal code. Once dis-enrolled or banished, the individual is stripped of their BIA number and no longer considered Indian for jurisdictional purposes.
Indian country is meant to include all land within the limits of any Indian reservation under the jurisdiction of the United States, including rights-of-way running through the reservation and all dependent Indian communities/villages within the borders of the US.
While the term “Indian country” may not sound politically correct, it is the official legal language of the territorial jurisdiction of the various native tribes of the United States, and can be found under 18 USC 1154 and 1156.
Indian country was established by treaties between various Indian Nations and the US Government, which originally put these nations under the exclusive jurisdiction of the federal government.
Also realize that the size of tribes vary. The Navajo Nation is the largest, stretching across four states and consisting of around 308,000 members. Last I heard, the Augustine Band of Cahuilla of California is roughly between eight and eleven members, and is the smallest.
The US Department of Interior’s Bureau of Indian Affairs (BIA) became the federal oversight entity of the hundreds of reservations across the US, and in doing so created their law enforcement organization, which is now housed under BIA’s Office of Justice Services (OJS) (formerly Department of Law Enforcement).
The BIA uniformed officers patrol the reservations. The BIA also employs criminal investigators as well, who also investigate felony crimes on reservations and often partner with the Federal Bureau of Investigations (FBI) on major criminal investigations. The FBI still oversees most of the major criminal investigations within Indian country. Agents are specifically assigned for this purpose.
The natural assumption is that federally recognized tribes fall within the federal jurisdiction, which is policed by BIA and the FBI and prosecuted by the federal. However, this is not entirely accurate.
Trying to reduce its role and responsibility for policing Indian communities, the federal government enacted Public Law 280 (officially titled Public Law 83-280) in 1953. This transferred jurisdiction from the federal government (courts) to the state governments, and allowed state-level felony laws to be applied in the same manner as federal law in Indian country.
Initially, PL 280 was intended for Oregon, California, Wisconsin, Nebraska, and Minnesota, but the language in the law allowed for any federally recognized tribe to agree with the state where their reservation was located to allow the state to have jurisdiction.
Many of these communities were poor and contained a large population of non-Indian members. They needed a judicial system to help the tribes maintain law and order on the reservation. Over time and under self-determination, with funding from the US Department of Justice and BIA, most tribes have set up their police and court systems. Those courts, however, are limited to misdemeanor-level crimes.
And this is where the jurisdictional nightmare begins. While many of the state governments agreed to PL 280, the counties in which the cases were to be prosecuted were caught off-guard, while others couldn’t afford to fight appeals regarding jurisdictional issues, so they refused to take cases from Indian country.
To make matters worse, most reservations have a mixed populous, consisting of Indian and non-Indian residents. Under federal law and case law, non-federally commissioned Tribal police officers have no powers to arrest non-Tribal members. (Oliphant Vs. Suquamish Indian Tribe 1978)
Non-BIA commissioned Tribal police officers under federal court rulings only have jurisdiction over members of federally recognized tribes and can only enforce the Tribal law, which can only carry a maximum of one year in jail.
THE TRIBAL LAW AND ORDER ACT
Until The Tribal Law and Order Act (TLOA), created under the Bush administration and signed into law by the Obama administration, tribes had no authority to create and enforce felony level offenses within their Tribal laws.
Tribal laws and codes only allowed for the maximum incarceration time of one year (basically a misdemeanor). Due to the high declination rate by the US Attorney’s Office and the reluctance of state and local departments to intercede in Indian country crimes, fifty percent of homicides and seventy-five percent of sexual assaults went unprosecuted.
I know of several cases where a Tribal member was a perpetrator of sexual assault, and the Tribal courts were left with the prosecution. In those cases, the suspects, once convicted, received only a year in jail for what should have been five years to life in prison for aggravated rape.
Since the TLOA was created, tribes are now able to write felony level offenses in their code books; these charges can imprison an offender for up to three years in prison. As of 2017, the felony level offenses are just barely getting codified due to the Tribal codes, courts, and correctional systems having to adjust to the potential long-term incarceration periods.
Many Tribal police departments and county sheriff’s offices cross-deputize each other’s officers so there are no jurisdictional issues over the arrest and the officers can determine which court to refer the case to afterward.
Oklahoma is a good example of cross-deputization. For years, various tribes sold off parts of their reservation, creating a patchwork of Tribal and non-Tribal locations down to every other house being of a different jurisdiction. So, to remedy this issue, the County Sheriff and Tribal police cross-deputized their officers and after an arrest is affected, the officers then determine whether to send the offender to local or Tribal court. Interestingly enough, there is no law enforcement database that can crosscheck a suspect with BIA registrations. Therefore, it’s often up to the suspect to identify himself as a Tribal member. Which leads to a lot of confusion. Let’s face it, criminals aren’t known for their honesty.
Many states are starting to adopt cross-deputization. It still varies from state to state and sometimes from county to county. For writers interested in Indian country mysteries, you must know your state laws pertaining to Tribal peace officer authority.
NATURAL RESOURCE ENFORCEMENT
Within Indian country, natural resource enforcement is another area that also poses jurisdictional complexities. Depending on treaty rights, some Tribal members have immunity from state prosecution when hunting and fishing off-reservation. These tribes have special provisions in their treaties that call for access to usual hunting and fishing areas that in the past allowed members to leave the confines of reservation to hunt and fish for subsistence.
In 1979, the Boldt decision in the Pacific Northwest not only reaffirmed this right but also concluded that the tribes (under the treaty being reviewed) were allotted to harvest fifty percent of all fish wildlife in the state of Washington.
Under that decision, the tribes are supposed to co-manage the resources with the state to determine seasons and harvest amounts. The decision went so far as to say that the tribes were responsible for policing their members during these seasons. Also, the members were subject to Tribal law rather than state law.
For writers, Indian country is an amazing setting for characters. There is a uniqueness to Indian country that doesn’t exist anywhere else in the US. Author Craig Johnson of Longmire fame does a pretty good job of covering this environment in his novels. As does Tony Hillerman. Indian country, like any other place, has both good and bad sides.
Some tribes are extremely wealthy while others are destitute. Some Tribal governments suffer outrageous amounts of corruption while others are prime examples of good governance. One cannot judge a reservation based on the activities or stereotypes of another.
Tribes, like states, write their own tax codes. This may include tax-free or low-taxed items, like cigarettes. Smuggling cigarettes off-reservation is a huge industry. Due to the gray legal area of jurisdiction, organized crime has moved in to take advantage.
Traditional Italian crime families have been known to interfere with Indian casinos, similar to Las Vegas in the 1950’s. Eastern European groups, Mexican Cartels, as well as Asian Organized crime are also seeking footholds.
My personal experience as an investigator has been with Asian and Eastern European organized crime groups getting involved in natural resource poaching and smuggling, as well as money laundering through Indian casinos. As Asian economies increase and build a growing middle class, their consumption of highly sought after natural remedies and delicacies increase. Eastern European groups have utilized Indian hotel and casinos for money laundering, as well as human trafficking in higher end call girls. Mexican cartels have been utilizing reservations in California to cultivate marijuana. In Arizona, the cartels have utilized one particular southern border reservation to smuggle drugs and people. The problem in Southern Arizona has been so bad for so long the US Customs (Now Immigration and Customs Enforcement) created a strict Indian tracking unit in 1972 named the Shadow Wolves to catch smugglers.
Indian communities are similar to all US communities in that there are doctors, lawyers, politicians, along with a criminal element within the community. Unfortunately, due to the complex criminal justice jurisdiction, non-Indian criminals in my experience pose the largest problem within Indian country by taking advantage of loopholes in the law. Also, be aware that not all Indian communities get along with each other; long histories and grievances between tribes remain to this day. Indian country is a great backdrop for any fiction writer. However, if you choose to write about Tribal police and jurisdiction, make sure you do your homework.
Thank you, Officer X!
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